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It's a rare day when the Second Circuit finds appellate counsel to have been ineffective. After all, the defendant needs to satisfy the Strickland standard, showing that counsel's performance was objectively unreasonable and that there exists a reasonable probability of a different result. Given the paucity of successful criminal appeals , that sets a pretty high bar. But in the recent decision by Judge Nathan (Park dissenting) in Purcell v. United States , 23-6985 (2d Cir. N

You may never have heard of the party presentation rule in appellate practice, but trust me, it's an important one. It states that, except in extraordinary circumstances, a court should decide an appeal based on the issues as framed by the parties . In other words, the court shouldn't independently hunt for issues it believes may be reviewable based on the district court record, unless, say, it's an issue that implicates the court's power to adjudicate, because doing so inevi

In my lectures during the last several years I've discussed the Second Circuit's abysmal record of affirming nearly all trial convictions in criminal cases. In 2024, for example, the court entirely reversed no convictions at all, while affirming 98. In 2023 they reversed 1 and affirmed 67 (although they granted substantial relief in another case, U.S. v. Lauria (Molina), 70 F.4th 106 (2d Cir. 6/9/23)), in which we were appellate counsel). Take a look at this graph and you'll

This week we saw a rare Second Circuit reversal of a conviction after trial. In United States v. Cole , 23-7566 (2d Cir. October 27, 2025), Judge Carney, joined by judges Jacobs and Nardini, reversed on double jeopardy grounds Neil Cole's conviction for security fraud and related charges. Cole had been acquitted at his first trial of a securities fraud conspiracy but the jury was hung on related substantive charges. Cole argued that his retrial on the substantive charges was